Adjudication of Temporary and Seasonal Need for Herding and Production of Livestock on the Range Applications Under the H-2A Program, 24368-24377 [2021-09639]

Download as PDF khammond on DSKJM1Z7X2PROD with PROPOSALS 24368 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules including the short slate and bona fide nominee rules. Do commenters believe that these rules are necessary or appropriate for any fund not required to use a universal proxy card? Or does the lack of proxy contests in open-end funds indicate that it would be appropriate to rescind these rules even if we do not extend the application of the Proposed Rules to open-end funds? 24. There are registered closed-end funds and BDCs that, like open-end funds, do not hold annual meetings to elect directors because of their state of incorporation or type of corporate entity, or because they are not listed on an exchange. If we were to exclude open-end funds from the Proposed Rules because of the lack of annual meetings, should the exclusion apply to registered closed-end funds and BDCs that do not hold annual meetings? Should such funds continue to be subject to the short slate and bona fide nominee rules? 25. Are there any other developments since 2016 we should consider in our assessment of whether the Proposed Rules should apply to open-end funds, closed-end funds or BDCs? What are the economic effects of any such developments? We request and encourage any interested person to submit comments regarding the Proposed Rules, specific issues discussed in this release or the 2016 Release, and other matters that may have an effect on the Proposed Rules. We request comment from the point of view of registrants, shareholders, directors, and other market participants. We note that comments are of particular assistance to us if accompanied by supporting data and analysis of the issues addressed in those comments, particularly quantitative information as to the costs and benefits. If alternatives to the Proposed Rules are suggested, supporting data and analysis and quantitative information as to the costs and benefits of those alternatives are of particular assistance. Commenters are urged to be as specific as possible. All comments received to date on the Proposed Rules will be considered and need not be resubmitted. If any commenters who have already submitted a letter wish to provide supplemental or updated comments, we encourage them to do so. By the Commission. Dated: April 16, 2021. J. Lynn Taylor, Assistant Secretary. [FR Doc. 2021–08301 Filed 5–5–21; 8:45 am] BILLING CODE 8011–01–P VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Part 655 [DOL Docket No. ETA–2020–0005] RIN 1205–AB99 Adjudication of Temporary and Seasonal Need for Herding and Production of Livestock on the Range Applications Under the H–2A Program Employment and Training Administration (ETA), Labor. ACTION: Proposed rule; request for comments. AGENCY: The Department of Labor (the Department) proposes to amend its regulations regarding the adjudication of temporary need for employers seeking herding or production of livestock on the range job opportunities under the H–2A program. Consistent with a courtapproved settlement agreement, this notice of proposed rulemaking (NPRM or proposed rule) would rescind the regulation that governs the period of need for such job opportunities to ensure the Department’s adjudication of temporary or seasonal need is conducted in the same manner for all applications for temporary agricultural labor certification. DATES: Interested persons are invited to submit written comments on the proposed rule on or before June 7, 2021. ADDRESSES: You may submit comments, identified by Regulatory Information Number (RIN) 1205–AB99, by the following method: Electronic Comments: Comments may be sent via https://www.regulations.gov, a Federal E-Government website that allows the public to find, review, and submit comments on documents that agencies have published in the Federal Register and that are open for comment. Simply type in ‘1205–AB99’ (in quotes) in the Comment or Submission search box, click Go, and follow the instructions for submitting comments. Instructions: All submissions must include the agency’s name and the RIN 1205–AB99. Please be advised that comments received will become a matter of public record and will be posted without change to https:// www.regulations.gov, including any personal information provided. Docket: For access to the docket to read background documents or comments, go to the Federal eRulemaking Portal at https:// www.regulations.gov. SUMMARY: PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 Brian Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Avenue NW, Room N– 5311, Washington, DC 20210, telephone: (202) 693–8200 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone number above via TTY/TDD by calling the toll-free Federal Information Relay Service at 1 (877) 889–5627. SUPPLEMENTARY INFORMATION: Table of Contents I. Background on 20 CFR Part 655, Subpart B A. Statutory Framework B. Regulatory Framework C. The Hispanic Affairs Project Litigation and Need for Rulemaking II. Discussion of Proposed Revision to 20 CFR Part 655, Subpart B III. Administrative Information I. Background on 20 CFR Part 655, Subpart B A. Statutory Framework The H–2A nonimmigrant worker visa program enables U.S. agricultural employers to employ foreign workers on a temporary basis to perform temporary or seasonal agricultural labor or services where the Secretary of Labor (Secretary) certifies that (1) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed to perform the labor or services involved in the petition; and (2) the employment of the aliens in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed. See section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (INA or the Act), as amended by the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. 1101(a)(15)(H)(ii)(a); section 218(a)(1) of the INA, 8 U.S.C. 1188(a)(1). The Secretary has delegated the authority to issue temporary agricultural labor certifications to the Assistant Secretary for Employment and Training, who in turn has delegated that authority to ETA’s Office of Foreign Labor Certification (OFLC). Secretary’s Order 06–2010 (Oct. 20, 2010).1 Once OFLC issues a temporary agricultural labor certification, employers may then 1 In addition, the Secretary has delegated to the Department’s Wage and Hour Division the responsibility under section 218(g)(2) of the INA, 8 U.S.C. 1188(g)(2), to assure employer compliance with the terms and conditions of employment under the H–2A program. Secretary’s Order 01– 2014 (Dec. 19, 2014). E:\FR\FM\06MYP1.SGM 06MYP1 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules petition the U.S. Department of Homeland Security (DHS) to employ a nonimmigrant worker in the United States in the H–2A visa classification. khammond on DSKJM1Z7X2PROD with PROPOSALS B. Regulatory Framework Since 1987, the Department has operated the H–2A temporary agricultural labor certification program under regulations promulgated pursuant to the INA.2 With limited exceptions, including those set forth below, the Department’s current regulations governing the H–2A program were published in 2010.3 The standards and procedures applicable to the certification and employment of workers under the H–2A program are found in 20 CFR part 655, subpart B and 29 CFR part 501.4 Historically, employers in a number of states (primarily but not exclusively in the western continental United States) have used what is now the H–2A program to bring in foreign workers to work as sheep and goat herders.5 Beginning in 1989, and consistent with Congress’ historical approach, the Department established variances from certain H–2A regulatory requirements and procedures through sub-regulatory guidance to allow employers of open range sheep and goat herders to use the 2 The Immigration and Nationality Act of 1952 created the H–2 temporary worker program. Public Law 82–414, 66 Stat. 163. In 1986, IRCA divided the H–2 program into separate agricultural and nonagricultural temporary worker programs. See Public Law 99–603, section 301, 100 Stat. 3359 (1986). The H–2A agricultural worker program designation corresponds to the statute’s agricultural worker classification in 8 U.S.C. 1101(a)(15)(H)(ii)(a). 3 Temporary Agricultural Employment of H–2A Aliens in the United States, 75 FR 6884 (Feb. 12, 2010). 4 The Department is currently engaged in a separate rulemaking that seeks to amend these regulations as they pertain to the H–2A program. Temporary Agricultural Employment of H–2A Nonimmigrants in the United States, 84 FR 36168 (July 26, 2019) (2019 NPRM). The 2019 NPRM proposed amendments to the current regulations that focus on modernizing the H–2A program and eliminating inefficiencies. The 2019 NPRM also proposed to amend the regulations for enforcement of contractual obligations for temporary foreign agricultural workers and the Wagner-Peyser Act regulations to provide consistency with revisions to H–2A program regulations governing the temporary agricultural labor certification process. 5 As the Department explained in its 2015 herder rulemaking, Congress enacted statutes during the early 1950s authorizing the permanent admission of a certain number of ‘‘foreign workers skilled in sheepherding.’’ See Temporary Agricultural Employment of H–2A Foreign Workers in the Herding or Production of Livestock on the Open Range in the United States, 80 FR 20300, 20301– 20302 (Apr. 15, 2015). Congress subsequently permitted these special laws to expire and signaled that sheepherders should be admitted under the existing temporary (then H–2) program. Id.; see also Changes to Requirements Affecting H–2A Nonimmigrants, 73 FR 76891, 76906–76907 (Dec. 18, 2008). VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 H–2A program. The Department established similar variances or ‘‘special procedures’’ through sub-regulatory guidance in 2007 for employers seeking to employ H–2A workers for open range herding or production of livestock positions. In 2015, the Department incorporated these ‘‘special procedures’’ provisions for the employment of workers in the herding and production of livestock on the range, with some modifications, into its H–2A regulation. Temporary Agricultural Employment of H–2A Foreign Workers in the Herding or Production of Livestock on the Range in the United States, 80 FR 62958 (Oct. 16, 2015) (2015 Rule).6 The variances codified in the 2015 Rule continued the agency’s recognition of the unique occupational characteristics of herding positions, which involve spending extended periods of time herding animals across remote range lands and being on call to protect and maintain herds for up to 24 hours a day, 7 days a week. These variances are codified at §§ 655.200 through 655.235.7 Section 101(a)(15)(H)(ii)(a) of the INA permits only ‘‘agricultural labor or services . . . of a temporary or seasonal nature’’ to be performed under the H– 2A visa category. 8 U.S.C. 1101(a)(15)(H)(ii)(a). Thus, as part of the Department’s adjudication of applications for temporary agricultural labor certification, the Department assesses on a case-by-case basis whether the employer has established a temporary or seasonal need for the agricultural work to be performed. See 20 CFR 655.161(a). In its initial rulemaking on the H–2A program in 1987, the Department explained that it would be appropriate for an employer to apply annually for recurring job opportunities in the same occupation when it involved ‘‘truly ‘seasonal’ 6 The 2015 Rule followed litigation in Mendoza v. Perez, in which the U.S. Court of Appeals for the District of Columbia Circuit held the special procedures pertaining to sheep, goat, and other open range herding or production of livestock were subject to the Administrative Procedure Act’s (APA) notice and comment requirements. 754 F.3d 1002, 1024 (D.C. Cir. 2014); see Mendoza v. Perez, 72 F. Supp. 3d 168, 175 (D.D.C. 2014) (remedial order setting a rulemaking schedule). 7 The 2019 NPRM proposed clarifying and technical revisions to certain provisions for employment of workers in herding and production of livestock on the range (e.g., portions of 20 CFR 655.205, 655.211, 655.220, and 655.225) that are not the subject of this proposal. 84 FR 36168, 36220– 21. The 2019 NPRM also proposed to incorporate into the H–2A regulations, with some modifications, the standards and procedures currently found in Training and Employment Guidance Letters related to animal shearing, commercial beekeeping, and custom combining, and to rescind the general provision that allows for the creation of ‘‘special procedures’’ (i.e., subregulatory variances from the regulations). Id. at 36171–73. PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 24369 employment,’’ but acknowledged that ‘‘the longer the employer needs a ‘temporary’ worker, the more likely it would seem that the job has in fact become a permanent one.’’ Labor Certification Process for the Temporary Employment of Aliens in Agriculture and Logging in the United States, 52 FR 20496, 20498 (June 1, 1987). The Department’s current regulations, which adopted DHS’s definition of ‘‘temporary or seasonal nature,’’ specify that employment is of a temporary nature ‘‘where the employer’s need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year,’’ and ‘‘of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations.’’ 20 CFR 655.103(d); 8 CFR 214.2(h)(5)(iv)(A); 75 FR 6884, 6890 (adopting DHS’s definition ‘‘was not intended to create any substantive change in how the Department administers the program’’). DHS regulations further provide that the Department’s finding that employment is of a temporary or seasonal nature is ‘‘normally sufficient’’ for the purpose of an H–2A petition, but state that notwithstanding this finding, DHS adjudicators will not find employment to be temporary or seasonal in certain situations, such as when ‘‘substantial evidence’’ exists that the employment is not temporary or seasonal. 8 CFR 214.2(h)(5)(iv)(B). Notwithstanding the regulatory definition found in 20 CFR 655.103(d) and 8 CFR 214.2(h)(5)(iv)(A), a rancher seeking to employ a sheep or goat herder under the 2015 Rule could continue to seek a temporary agricultural labor certification for up to a 364-day period, as it could under the special procedures that preceded the rule. 80 FR 62958, 62999–63000; see 20 CFR 655.215(b)(2) (‘‘The period of need identified on the H–2A Application for Temporary Employment Certification and job order for range sheep or goat herding or production occupations must be no more than 364 calendar days.’’). The 2015 Rule also restricted range livestock occupations to periods of need lasting not more than 10 months. 80 FR 62958, 63000; see 20 CFR 655.215(b)(2) (‘‘The period of need identified on the H–2A Application for Temporary Employment Certification and job order for range herding or production of cattle, horses, or other domestic hooved livestock, except sheep and goats, must be for no more than 10 months.’’). For E:\FR\FM\06MYP1.SGM 06MYP1 24370 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules the reasons discussed below, including a recent court decision and related settlement agreement, the Department is now proposing to rescind § 655.215(b)(2) in its entirety. khammond on DSKJM1Z7X2PROD with PROPOSALS C. The Hispanic Affairs Project Litigation and Need for Rulemaking On September 22, 2015, four sheepherders and a nonprofit member organization for Hispanic immigrant workers filed a lawsuit in the U.S. District Court for the District of Columbia challenging aspects of the 2015 Rule. Hispanic Affairs Project v. Perez, 206 F. Supp. 3d 348 (D.D.C. 2016).8 As relevant to this rulemaking, the plaintiffs challenged the Department’s decision to allow employers seeking temporary agricultural labor certifications for sheep or goat herder positions to apply for periods of need that last up to 364 days at a time. See Hispanic Affairs Project v. Acosta, 263 F. Supp. 3d 160, 182 (D.D.C. 2017) (citing 20 CFR 655.215(b)(2)). The plaintiffs also challenged DHS’s alleged practice of automatically approving sheep and goat herder petitions for recurring periods up to 364 days, asserting that the Department’s regulation at § 655.215(b)(2) and DHS’s alleged practice did not conform with the INA or the Departments’ regulations, in violation of the APA. See id. Specifically, the plaintiffs argued § 655.215(b)(2) and DHS’s alleged practice are inconsistent with 8 U.S.C. 1101(a)(15)(H)(ii)(a), which provides that H–2A visas be only for ‘‘temporary’’ work, and conflicts with the Departments’ regulations defining when employment is of a ‘‘temporary or seasonal nature.’’ See id.; compare 20 CFR 655.103(d) and 8 CFR 214.2(h)(5)(iv)(A) (employer’s ‘‘need to fill the position with a temporary worker will . . . last no longer than one year’’) with 20 CFR 655.215(b)(2) (‘‘The period of need identified on the [application and job order] . . . must be no more than 364 calendar days.’’). The district court dismissed the challenge on procedural grounds, concluding the plaintiffs waived their claim against the Department and did not properly or timely raise their claim against DHS. Id. at 185–86, 190.9 8 On April 3, 2017, the district court granted two employer associations’ motion to intervene as defendants in the litigation. Minute Order Granting Mountain Plains Agricultural Service and Western Range Association’s Joint Motion to Intervene, Hispanic Affairs Project, et al. v. Perez et al., No. 15–cv–1562 (D.D.C. Apr. 3, 2017). 9 Plaintiffs also challenged two other aspects of the 2015 Rule: (1) Certain definitions and requirements that limit the scope and location of work that H–2A workers in sheep and goat herding VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 On appeal, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) reversed and remanded the district court’s decision on these claims for a resolution on the merits. Hispanic Affairs Project v. Acosta, 901 F.3d 378, 396–97 (D.C. Cir. 2018). The court held the plaintiffs preserved their challenge to the Department’s decision in the 2015 Rule to classify sheep and goat herding as ‘‘temporary’’ employment. Id. at 385. In dicta, the court noted the ‘‘agency has no power under the statute—it is actually forbidden—to include nontemporary or non-seasonal workers in the H–2A program.’’ Id. at 389. The court also held the complaint adequately raised a challenge to DHS’s alleged practice of extending ‘‘temporary’’ H–2A petitions beyond the regulatory definition of temporary employment. Id. at 385, 388. Taking the evidence submitted by the plaintiffs as true, the court concluded the plaintiffs had ‘‘plausibly shown that [DHS]’s de facto policy of authorizing long-term visas is arbitrary, capricious, and contrary to law, in violation of the APA and [INA] because it ‘authorizes the creation of permanent herder jobs that are not temporary or seasonal.’ ’’ Id. at 386 (original alterations omitted). Following the D.C. Circuit’s decision, the parties reached a settlement agreement that was approved by the district court on November 12, 2019. Order Approving the Parties’ Settlement Agreement, ECF No. 136, Hispanic Affairs Project, et al. v. Perez et al., No. 15–cv–1562 (D.D.C. Nov. 12, 2019). As part of the settlement, the Department agreed to engage in rulemaking to propose to rescind § 655.215(b)(2) and DHS, through U.S. Citizenship and Immigration Services (USCIS), agreed to publish a policy memorandum that provided guidance on the determination of temporary or seasonal need for H–2A sheep and goat herder petitions. Joint Status Report at 1, ECF No. 135, Hispanic Affairs Project, et al. v. Perez et al., No. 15–cv–1562 (D.D.C. Nov. 8, 2019) (noting ‘‘Intervenor Defendants do not object to the Settlement Agreement’’). On November 14, 2019, USCIS issued a draft of the memorandum for public comment. After a 30-day public comment period, USCIS published a final memorandum on positions may perform, 80 FR 62958, 62963–73; and (2) the methodology by which the Department calculates the minimum required wage that such workers (and any non-H–2A workers in corresponding employment) must be offered and paid, id. at 62986–96. The Department and DHS prevailed on these issues. See Hispanic Affairs Project v. Acosta, 901 F.3d 378, 391–96 (D.C. Cir. 2018), aff’g in part 263 F. Supp. 3d 160, 190–207 (D.D.C. 2017). PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 February 28, 2020, which became effective on June 1, 2020. See USCIS, Policy Memorandum: Updated Guidance on Temporary or Seasonal Need for H–2A Petitions Seeking Workers for Range Sheep and/or Goat Herding or Production (Feb. 28, 2020) (USCIS Policy Memorandum).10 The Department’s proposed rescission of § 655.215(b)(2) would eliminate that provision’s presumptive period of need for employment involving range sheep or goat herding and absolute restriction on the period of need for employment involving other range livestock activities. The 2015 Rule suggested that the unique nature and history of herding work permitted a variance, on an occupational basis, from the standard H–2A requirements governing the adjudication of an employer’s temporary need. As such, § 655.215(b)(2) permits certification of a specific period of time without requiring the Department to assess the true nature of the labor or services to be provided by the H–2A nonimmigrant. The Department, however, is now proposing to rescind § 655.215(b)(2) so that all employers applying for temporary agricultural labor certifications must individually demonstrate their need for the agricultural labor or services to be performed is temporary or seasonal in nature, regardless of occupation. The Department believes this proposed rescission of § 655.215(b)(2) is not only consistent with the D.C. Circuit’s decision in Hispanic Affairs Project and the guidance issued by USCIS but also better complies with the requirements of the INA implemented in the Departments’ regulations that define when employment is of a ‘‘temporary or seasonal nature.’’ 8 U.S.C. 1101(a)(15)(H)(ii)(A) (defining an H–2A nonimmigrant as an alien coming to perform services of a temporary or seasonal nature); 20 CFR 655.103(d); 75 FR 6884, 6890 (adopting DHS’s definition of ‘‘temporary or seasonal nature’’ set forth in 8 CFR 214.2(h)(5)(iv)(A)). II. Discussion of Proposed Revision to 20 CFR Part 655, Subpart B The Department proposes to rescind § 655.215(b)(2) so that the temporary or seasonal need of an employer seeking to fill a herding or production of livestock on the range position would be adjudicated according to the requirement in § 655.103(d) that governs the adjudication of employment of a temporary or seasonal nature for all 10 See https://www.uscis.gov/sites/default/files/ USCIS/Laws/Memoranda/2020/2-PMH2A-Seasonal SheepGoatHerder_PolicyMemo.pdf. E:\FR\FM\06MYP1.SGM 06MYP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules other H–2A applications. See 20 CFR 655.200(a) (noting that employers whose job opportunities meet the qualifying criteria under §§ 655.200–655.235 must fully comply with all the requirements of §§ 655.100–655.185 unless otherwise specified in §§ 655.200–655.235). In particular, the Department would examine—on a case-by-case basis and taking into consideration the totality of the facts presented—whether an employer’s need to fill a herding or production of livestock on the range position is of a temporary or seasonal nature, as those terms are defined in the Department’s and DHS’s regulations. See 20 CFR 655.103(d); 8 CFR 214.2(h)(5)(iv)(A). Section 655.103(d) states that employment ‘‘is of a temporary nature where the employer’s need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year.’’ The same section states ‘‘employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations.’’ This proposal does not alter the regulatory definition and standards under which the Department adjudicates temporary or seasonal need for all other H–2A job opportunities under § 655.103(d). Although recurring year-round activities cannot be classified as temporary, see 75 FR 6884, 6891, the Department recognizes that some herder employers may be able to establish a need to fill positions on a recurring annual basis consistent with the definition of employment of a seasonal nature in § 655.103(d). See 80 FR 62958, 62999–63000 (2015 Rule describing comments that delineated seasonal aspects of herder work); 52 FR 20496, 20498 (acknowledging it is appropriate to apply annually for truly ‘‘seasonal’’ employment); see also USCIS Policy Memorandum at 3 n.3 (explaining that an employer’s need for workers that recurs annually at a given time of year does not mean its need is permanent in nature as employment of a seasonal nature is defined as being tied to a certain time of year). The Department also acknowledges that some employers may have a ‘‘temporary’’ need to fill herding and range livestock job opportunities, which is permissible provided they can show the nature of their need is temporary under § 655.103(d). See Temporary Workers Under § 301 of the Immigration Reform and Control Act, 11 Op. O.L.C. 39, 40 & n.4 (1987) (noting ‘‘ ‘temporary’ means something other than seasonal’’ and VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 explaining employers may fill ‘‘permanent jobs that an employer needs to fill on a temporary basis—for example, because the regular American employee has fallen ill or extra hands are needed during a busy period’’); 11 Op. O.L.C. at 42 (‘‘The nature of the job itself is irrelevant. What is relevant is whether the employer’s need is truly temporary.’’). The proposed rule aligns the Department’s adjudication of the temporary or seasonal need of herder applications with corresponding changes DHS has implemented in the USCIS Policy Memorandum. The memorandum explains, for example, that USCIS will adjudicate H–2A sheep and goat herder petitions filed on or after June 1, 2020, on a case-by-case basis, taking into consideration the totality of the facts presented, and in the same manner as all other H–2A petitions. USCIS Policy Memorandum at 1, 9. Under this memorandum, past periods of need approved by USCIS prior to June 1, 2020, will be one element considered when determining whether an H–2A petition demonstrates a true temporary or seasonal need. Id. at 9. The Department requests comments on all issues related to this proposed rule, including economic or other regulatory impacts of this rule on the public. As noted above, on July 26, 2019, the Department issued a separate notice of proposed rulemaking that proposed to amend the regulations regarding the certification of temporary employment for nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. 84 FR 36168. In the 2019 NPRM, the Department sought public comment on the possibility of moving the adjudication of an employer’s temporary or seasonal need exclusively to DHS or exclusively to DOL. Id. at 36178. The 2019 NPRM also proposed other amendments to the Department’s regulations governing the H–2A program at 20 CFR part 655, subpart B. Because the comment period for that rulemaking closed on September 24, 2019, the change proposed here— rescission of § 655.215(b)(2)—does not affect the request for comments in that NPRM. The Department expects to publish a separate final rule for the 2019 NPRM, responding to public comment on the proposals contained therein. The Department does not anticipate the rulemaking associated with the 2019 NPRM will affect the change proposed here and comments on the proposals PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 24371 contained in that NPRM are outside the scope of this limited rulemaking. To the extent a final rule associated with the 2019 NPRM substantively affects this rulemaking, the Department will consider, as appropriate, extending or reopening the public comment period for this proposal. III. Administrative Information A. Executive Order 12866, Regulatory Planning and Review; and Executive Order 13563, Improved Regulation and Regulatory Review Under E.O. 12866, the Office of Management and Budget (OMB)’s Office of Information and Regulatory Affairs determines whether a regulatory action is significant and therefore, subject to the requirements of the E.O. and OMB review. Section 3(f) of E.O. 12866 defines a ‘‘significant regulatory action’’ as an action that is likely to result in a rule that (1) has an annual effect on the economy of $100 million or more, or adversely affects in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities (also referred to as economically significant); (2) creates serious inconsistency or otherwise interferes with an action taken or planned by another agency; (3) materially alters the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raises novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the E.O. This proposed rule is a significant, but not economically significant, regulatory action under Section 3(f) of E.O. 12866. The Department has prepared a Regulatory Impact Analysis (RIA) in connection with this proposed rule, as required under section 6(a)(3) of E.O. 12866. E.O. 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; the regulation is tailored to impose the least burden on society, consistent with achieving the regulatory objectives; and in choosing among alternative regulatory approaches, the agency has selected those approaches that maximize net benefits. E.O. 13563 recognizes that some benefits are difficult to quantify and provides that, where appropriate and permitted by law, agencies may consider and discuss qualitatively values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts. E:\FR\FM\06MYP1.SGM 06MYP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 24372 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules Overview of This Rule The Department has determined that this proposed rule is necessary as it would clarify the Department’s adjudication of temporary or seasonal need for herding and range livestock applications for temporary agricultural labor certification under the H–2A program, and would align that adjudication with the requirements of the INA. The proposed rule would also standardize the Department’s adjudication of temporary need under the H–2A program. The Department’s definition of ‘‘temporary or seasonal nature’’ for the H–2A program, with the exception of its current definition of ‘‘temporary’’ for herding and range livestock occupations, is consistent with the Department of Homeland Security’s definition specifying that employment is of a temporary nature ‘‘where the employer’s need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year,’’ and ‘‘of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations.’’ 20 CFR 655.103(d); 8 CFR 214.2(h)(5)(iv)(A). Notwithstanding the regulatory definition found in 20 CFR 655.103(d) and 8 CFR 214.2(h)(5)(iv)(A), the 2015 Rule allowed employers of sheep and goat herders to apply for a temporary agricultural labor certification for a period of up to 364 days. Conversely, the same rule limited employers of range livestock occupations to a temporary agricultural labor certification with a period of need not to exceed 10 months. As discussed above, an appellate court held that plaintiffs preserved their challenge to the Department’s decision in the 2015 Rule to classify sheep and goat herding as ‘‘temporary’’ employment. The court additionally held the complaint adequately raised a challenge to DHS’s alleged practice of extending ‘‘temporary’’ H–2A petitions beyond the regulatory definition of temporary employment. Taking the evidence submitted by the plaintiffs as true, the court concluded the plaintiffs had plausibly shown DHS’s alleged practice of automatically extending H–2A petitions would convert job opportunities that should be temporary or seasonal in nature into permanent positions, which is inconsistent with Section 101(a)(15)(H)(ii)(a) of the INA. The parties subsequently reached a settlement agreement in which the VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 Department agreed to engage in rulemaking to propose to rescind § 655.215(b)(2) and DHS, through USCIS, agreed to publish a policy memorandum that provided guidance on the determination of temporary or seasonal need for H–2A sheep and goat herder petitions. In this proposed rule, the Department proposes to rescind § 655.215(b)(2), which would eliminate that provision’s presumptive period of need for employment involving range herding and absolute restriction on the period of need for employment involving range livestock activities. Instead, all employers applying for H–2A temporary agricultural labor certifications under the proposed rule must individually demonstrate that their need for workers is temporary or seasonal, regardless of occupation. Economic Impact The Department estimates that the proposed rule, if finalized, would result in costs to employers associated with their familiarization with the rule. The cost of the proposed rule is associated with rule familiarization requirements for all herding and range livestock employers utilizing the H–2A program. In addition to the rule familiarization cost, the Department believes that employers may incur other costs from the implementation of the proposed rule attributed to changes in business operations, transportation, staffing turnover, and training requirements. As explained above, although recurring year-round activities cannot be classified as temporary, the Department recognizes that there may be seasonal aspects of herder work for which employers may still establish a need to fill positions on a recurring annual basis consistent with the definition of employment of a ‘‘seasonal’’ nature in § 655.103(d) and that some herder employers may also still present a need that is truly ‘‘temporary’’ under § 655.103(d) in certain circumstances. The Department qualitatively discusses the potential costs to employers incurred by the implementation of this rule but does not quantify them due to a lack of available data and the wide spectrum of possible responses by employers that cannot be predicted with specificity. The Department seeks public comment on how these employers may be impacted by the proposed change in regulation. Transfer payments under the proposed rule, if finalized, would result from eliminating the absolute restriction on the period of need for employment involving other range livestock activities and the presumptive period of need for PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 employment involving range sheep or goat herding. In particular, some employers engaged in non-sheep and/or goat herding activities 11 could potentially extend their period of need beyond 10 months, provided they can show the nature of their need is temporary.12 In addition, sheep and/or goat herding employers whose need is temporary or seasonal in nature and whose period of need currently exceeds 10 months would be expected to reduce their period of need to 10 months or less.13 See the costs and transfer payments subsections below for a detailed explanation. As shown in Exhibit 1, the Department estimates the changes proposed in this rule would result in a quantified annualized cost of $3,144 at a discount rate of 7 percent and $2,588 at a discount rate of 3 percent, as well as unquantified costs associated with changes in business operations, transportation, staffing turnover, and training requirements. Additionally, the proposed rule, if finalized, is expected to result in transfers for all herding and range livestock employers. Some employers engaged in non-sheep and/or goat herding activities would incur a transfer from employers to employees due to rescinding the restriction on the period of need for employment involving range livestock activities. The Department estimates that the proposed rule would result in annualized transfers of $95,556 at a discount rate of 7 percent and $91,983 at a discount rate of 3 percent for these employers. Furthermore, employers engaged in sheep and/or goat herding activities would experience a transfer from employees to employers due to a reduction in the allowed period of need for the majority of the aforementioned employers. The Department estimates that the proposed rule would result in annualized transfers of $8.42 million at a discount rate of 7 percent and $8.11 million at a discount rate of 3 percent for these employers. 11 This includes range herding or production of cattle, horses, or other domestic hooved livestock except sheep and goats. 12 For the purpose of this analysis, employers engaged in non-sheep and/or goat herding activities with a minimum period of need of 300 days and a maximum period of need of 308 days were used to make the Department’s transfer estimates. 13 The Department’s records indicate that the majority of employers engaged in sheep and/or goat herding occupations would likely reduce their requested period of need to 10 months or less. The Department used 300 days to represent a period of 10 months. E:\FR\FM\06MYP1.SGM 06MYP1 24373 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules EXHIBIT 1—ESTIMATED COSTS AND TRANSFER PAYMENTS OF THE PROPOSED RULE Costs Undiscounted 10-Year Total 10-Year Total Annualized at Annualized at 10-Year Total .................................................................................... with a Discount Rate of 3% .............................................................. with a Discount Rate of 7% .............................................................. a Discount Rate of 3% ..................................................................... a Discount Rate of 7% ..................................................................... The Department was unable to quantify some costs, cost savings, and benefits of the proposed rule. The Department, however, invites comments regarding the assumptions, data sources, and methodologies used to estimate the costs and transfer payments from this proposed rule. i. Costs a. Rule Familiarization Costs Should the proposed rule take effect, herding and range livestock employers would need to familiarize themselves with the new regulations; consequently, this will impose a one-time cost in the first year. The Department’s analysis assumes that the changes introduced by the rule would be reviewed by Human Resources Specialists (SOC 13–1071). The median hourly wage for these workers is $29.77 per hour.14 In addition, the Department assumes that benefits are paid at a rate of 46 percent 15 and overhead costs are paid at a rate of 17 percent of the base wage, resulting in a fully-loaded hourly wage of $48.53.16 This hourly wage was multiplied by the estimated number of herding and range livestock employers (910) 17 and by the estimated amount of time required to review the rule (.5 hours). This calculation results in a onetime cost of $22,079 in the first year after the proposed rule takes effect. The annualized cost over the 10-year period is $2,588 and $3,144 at discount rates of 3 and 7 percent, respectively. Transfer payments from employers of non-sheep and/or goat herding $22,079 22,079 22,079 2,588 3,144 b. Other Costs The Department assumes some employers will experience increased costs associated with changes in business operations, transportation, staffing turnover, and training requirements under this proposed rule. In accordance with the Department’s current regulation, employers of sheep and goat herders are permitted to apply for a temporary agricultural labor certification for a period of up to 364 days. Under the proposed rule if finalized, sheep and goat herding employers whose need is temporary or seasonal in nature and whose period of need currently exceeds 10 months would be expected to reduce their period of need to 10 months or less. The Department notes that, in instances where employers have recurring yearround labor needs that are actually permanent, rather than temporary or seasonal in nature, the Department expects some employers might utilize the employment-based immigrant petition process to hire foreign workers, which includes options for skilled workers, professionals, and other workers under 8 U.S.C. 1153(b)(3). The Department seeks comment on how employers might adjust their business models to accommodate the reduction in the permitted length of employment, and what effect this might have on costs of operations. Although the Department does not anticipate the proposed rule will have a significant adverse effect as Transfer payments to employers of sheep and/or goat herding $893,043 784,637 671,143 91,983 95,556 $78,731,848 69,174,659 59,168,812 8,109,380 8,424,308 employers must already adjust to DHS’s guidelines, the Department acknowledges that some employers of sheep and goat herders will need to replenish their labor supply by hiring additional U.S. workers to account for the reduced period of need, or extending the work schedule for U.S. workers that they employ if they are available. This may lead to increased costs due to staffing turnovers, the need to train new employees, overtime incurred due to increased work hours, as well as potential changes to their business practices. The Department does not have data available to assess how the universe of sheep and goat herding employers may be impacted by this change and seeks public comment on how these employers may be impacted by the proposed rule. Transfers The first category of transfers associated with this proposed rule would be an employer to employee transfer incurred due to a potential increase in the maximum period of need from 10 months up to 1 year, or longer in extraordinary circumstances, for a small number of employers engaged in non-sheep and/or goat herding who can demonstrate their need is temporary. Exhibit 2 presents the distribution of the period of need on approved applications filed by unique employers of non-sheep and/or goat herders during FYs 2017, 2018, and 2019. EXHIBIT 2—DISTRIBUTION OF PERIOD OF NEED FOR UNIQUE CERTIFIED EMPLOYERS OF NON-SHEEP/GOAT HERDING BY YEAR [FY 17–19] Year khammond on DSKJM1Z7X2PROD with PROPOSALS Period of need (days) 2017 0–70 ............................................................................................................................................. 14 Median hourly wage for Human Resources Specialists were obtained from the Bureau of Labor Statistics Occupational Employment Statistics Survey, May 2019, https://www.bls.gov/oes/current/ oes131071.htm. 15 The benefits-earnings ratio is derived from the Bureau of Labor Statistics’ Employer Costs for VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 Employee Compensation data using variables CMU1020000000000D and CMU1030000000000D. 16 $29.77 + $29.77(0.46) + $29.77(0.17) = $48.53. 17 The Department’s estimate of 910 unique employers is based on H–2A certification data from Fiscal Years (FYs) 2017, 2018, and 2019. The PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 2018 5 2019 5 10 Department identified the average number of unique applicants engaged in sheep and/or goat herding activities across FYs 2017, 2018, and 2019 (744). This was then added to the average number of unique applicants engaged in non-goat/sheep and/or goat herding activities across the same time period (166). 744 + 166 = 910. E:\FR\FM\06MYP1.SGM 06MYP1 24374 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules EXHIBIT 2—DISTRIBUTION OF PERIOD OF NEED FOR UNIQUE CERTIFIED EMPLOYERS OF NON-SHEEP/GOAT HERDING BY YEAR—Continued [FY 17–19] Year Period of need (days) 2017 2018 2019 71–140 ......................................................................................................................................... 141–210 ....................................................................................................................................... 210–299 ....................................................................................................................................... 300–308 ....................................................................................................................................... >308 ............................................................................................................................................. Number of Unique Employers ..................................................................................................... 15 10 27 72 0 129 16 10 47 103 0 181 17 7 48 107 0 189 Average Period of Need ....................................................................................................... 254 260 257 Transfer payments were calculated by identifying unique employers engaged in non-sheep and/or goat herding from FYs 2017, 2018, and 2019.18 The Department then identified employers within this group of unique employers whose applications contained periods of need between 300 and 308 days. The Department identified this subset because some employers whose applications contained periods of need that fall within this range are likely to extend their period of need up to a year, or longer in extraordinary circumstances, if they can demonstrate their need is temporary in nature (i.e., their need is not for recurring yearround activities). The Department expects that an infrequent number of employers of non-sheep and/or goat herders would extend their period of need beyond 10 months. For this analysis, the Department conservatively assumes that no more than 10 percent of the unique employers who were identified to have a period of need between 300 and 308 days would apply, and be approved by OFLC, to extend their period of temporary need beyond a 10-month period.19 The Department invites comments regarding the assumptions on the percentage of unique employers affected. Based on OFLC’s performance data, the Department estimated the impact of extending the period of need by multiplying the number of workers certified for each of the unique nonsheep and/or goat herding employers by the basic rate of pay offered to these workers each year. The figures for each year were then multiplied by 2 in order to estimate the impact from an additional two months of need, which yields an annualized transfer of $95,556 at a discount rate of 7 percent and $91,983 at a discount rate of 3 percent. The second category of transfers associated with this proposed rule would be an employee to employer transfer incurred due to potential reductions in sheep and/or goat herding employers’ period of need from a maximum of 364 days to 10 months or less for annually recurring applications.20 Exhibit 3 presents the distribution of the period of need on approved applications filed by unique employers of sheep and/or goat herders during FYs 2017, 2018, and 2019. EXHIBIT 3—DISTRIBUTION OF PERIOD OF NEED FOR UNIQUE CERTIFIED EMPLOYERS OF SHEEP/GOAT HERDING BY YEAR [FY 17–19] Year khammond on DSKJM1Z7X2PROD with PROPOSALS Period of need (days) 2017 2018 2019 0–70 ............................................................................................................................................. 71–140 ......................................................................................................................................... 141–210 ....................................................................................................................................... 210–299 ....................................................................................................................................... >299 ............................................................................................................................................. Number of Unique Employers ..................................................................................................... 0 1 6 4 743 754 2 4 5 7 673 691 3 9 3 7 761 783 Average Period of Need ....................................................................................................... 360 357 356 Transfer payments were calculated by identifying unique employers engaged in sheep and/or goat herding from FYs 2017, 2018, and 2019.21 The Department identified employers within this group of unique employers whose applications contained a period of need of 300 days or more. Based on OFLC’s performance data, the Department estimated the impact of reducing the period of eligibility by multiplying the number of workers certified for each of the unique sheep and/or goat herding employers by the basic rate of pay offered to these workers each year. The figures for each 18 Based on FYs 2017, 2018, and 2019 performance data obtained from OFLC, the Department estimates that the number of non-sheep and/or goat herding employers is unlikely to increase over the rule’s 10-year time forecast. 19 The Department assumes a small percentage of the unique employers who were identified to have a period of need between 300 and 308 days will apply to extend their period of temporary need beyond a 10-month period up to 1 year, or longer in extraordinary circumstances. 20 The Department’s analysis of employers of sheep and goat herders represents the transfer from employer to employee. The Department assumes that in some instances that employers will seek to replace H–2A employees who have met the period of need threshold with U.S. employees, which would constitute a transfer between H–2A employees and U.S. employees. This potential transfer could not be evaluated due to data limitations. 21 Based on FYs 2017, 2018, and 2019 performance data obtained from OFLC. VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 E:\FR\FM\06MYP1.SGM 06MYP1 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules year were then multiplied by the number of days requested for the period of need of 300 days or more in order to estimate the impact from reducing the period of need to 10 months or less, which yields an annualized transfer of $8,424,308 at a discount rate of 7 percent and $8,109,380 at a discount rate of 3 percent. khammond on DSKJM1Z7X2PROD with PROPOSALS ii. Benefits By rescinding 20 CFR 655.215(b)(2), the Department standardizes the adjudication of temporary need under the H–2A program and aligns the Department’s adjudication of the temporary or seasonal need of herder applications with corresponding changes DHS has implemented in the USCIS Policy Memorandum. Furthermore, the proposed rescission of § 655.215(b)(2) better complies with pertinent provisions of the INA and the Departments’ applicable implementing regulations that define when employment is of a ‘‘temporary or seasonal nature.’’ Therefore, this proposed rule aims to help ensure the employment of H–2A workers in herding and range livestock operations does not adversely affect the wages and working conditions of workers in the United States similarly employed. B. Regulatory Flexibility Analysis and Small Business Regulatory Enforcement Fairness Act and Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104–121 (March 29, 1996), requires Federal agencies engaged in rulemaking to consider the impact of their proposals on small entities, consider alternatives to minimize that impact, and solicit public comment on their analyses. The RFA requires the assessment of the impact of a regulation on a wide range of small entities, including small businesses, not-forprofit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a proposed or final rule would have a significant economic impact on a substantial number of small entities. 5 U.S.C. 603, 604. If the determination is that it would, the agency must prepare a regulatory flexibility analysis as described in the RFA. Id. However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, the RFA provides that the head of the agency may so certify and a VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 regulatory flexibility analysis is not required. See 5 U.S.C. 605. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear. The Department does not expect that this NPRM will have a significant economic impact on a substantial number of small entities. However, the Department is publishing this Initial Regulatory Flexibility Analysis (IRFA) to invite public comment on all aspects of this IRFA, including the estimates related to the number of small entities affected by the NPRM and expected costs. The Department also invites public comment on whether viable alternatives exist that would reduce the burden on small entities while remaining consistent with statutory requirements and the objectives of the NPRM. 1. Why the Department Is Considering Action The Department has determined that this proposed rule is necessary as it would clarify the Department’s adjudication of temporary or seasonal need for herding and range livestock applications for temporary agricultural labor certification under the H–2A program, and would align that adjudication with the requirements of the INA. The proposed rule would also standardize the Department’s adjudication of temporary need under the H–2A program. The Department’s definition of ‘‘temporary or seasonal nature’’ for the H–2A program, with the exception of its current definition of ‘‘temporary’’ for herding and range livestock occupations, is consistent with the Department of Homeland Security’s definition specifying that employment is of a temporary nature ‘‘where the employer’s need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than 1 year,’’ and ‘‘of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations.’’ 20 CFR 655.103(d); 8 CFR 214.2(h)(5)(iv)(A). 2. Objectives of and Legal Basis for the NPRM The Department’s proposed rescission of § 655.215(b)(2) would eliminate that provision’s presumptive period of need for employment involving range sheep or goat herding and absolute restriction on the period of need for employment involving other range livestock PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 24375 activities. The 2015 Rule suggested that the unique nature and history of herding work permitted a variance, on an occupational basis, from the standard H–2A requirements governing the adjudication of an employer’s temporary need. As such, § 655.215(b)(2) permits certification of a specific period of time without requiring the Department to assess the true nature of the labor or services to be provided by the H–2A nonimmigrant. The Department, however, is now proposing to rescind § 655.215(b)(2) so that all employers applying for temporary agricultural labor certifications must individually demonstrate their need for the agricultural labor or services to be performed is temporary or seasonal in nature, regardless of occupation. The Department believes this proposed rescission of § 655.215(b)(2) is not only consistent with the D.C. Circuit’s decision in Hispanic Affairs Project and the guidance issued by USCIS but also better complies with the requirements of the INA implemented in the Departments’ regulations that define when employment is of a ‘‘temporary or seasonal nature.’’ 8 U.S.C. 1101(a)(15)(H)(ii)(A) (defining an H–2A nonimmigrant as an alien coming to perform services of a temporary or seasonal nature); 20 CFR 655.103(d); 75 FR 6884, 6890 (adopting DHS’s definition of ‘‘temporary or seasonal nature’’ set forth in 8 CFR 214.2(h)(5)(iv)(A)). 3. Estimating the Number of Small Entities Affected by the Rulemaking The Department collected industry data from the Bureau of Labor Statistics’ (BLS) Quarterly Census for Employment and Wage (QCEW) for FY 2020. This process allowed the Department to identify the number of entities impacted by this proposed rule for two North American Industry Classification System (NAICS) Codes that frequently request H–2A certification for herding and livestock production job opportunities: NAICS 112410: Sheep Farming, and NAICS 112111: Beef Cattle Ranching, and Farming. The Department was able to identify 9,329 establishments that are classified as part of the beef cattle ranching, and farming industry, and 233 Establishments that are classified as part of the sheep farming industry. Next, the Department used the SBA size standards to classify the vast majority of these employers (approximately 99 percent) as small. E:\FR\FM\06MYP1.SGM 06MYP1 24376 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules 7. Alternative to the NPRM 4. Compliance Requirements of the NPRM, Including Reporting and Recordkeeping The Department has estimated the cost of the time to read and review the proposed rule. In addition, the Department assumes some employers will experience increased costs associated with changes in business operations, transportation, staffing turnover, and training requirements under this proposed rule. The Department seeks comment on how employers might adjust their business models to accommodate the reduction in the permitted length of employment, and what effect this might have on costs of operations. khammond on DSKJM1Z7X2PROD with PROPOSALS 5. Calculating the Impact of the NPRM on Small Entities The Department estimates that small businesses engaged in herding and livestock production would incur a onetime cost of $24.27 to familiarize themselves with the changes proposed by this rule. Other costs that employers could incur are attributed to the potential need to adjust their staffing and business operations as well as employing more U.S. workers to offset the loss of H–2A workers. However, we do not expect that these costs will be significant, and we seek public comments on this matter. The Department reviewed the impacts of this proposed rule for two North American Industry Classification System (NAICS) Codes that frequently request H–2A certification for herding and livestock production job opportunities: NAICS 112410: Sheep Farming, and NAICS 112111: Beef Cattle Ranching, and Farming. The Small Business Administration estimates that revenue for a small business with NAICS Code 112410 is $1.0 million and for NAICS Code 112111 is $1.0 million. Although the Department does not anticipate the proposed rule will have a significant adverse effect as employers must already adjust to DHS’s guidelines, the Department acknowledges that some employers of sheep and goat herders will need to replenish their labor supply by hiring additional U.S. workers to account for the reduced period of need, or extending the work schedule for U.S. workers that they employ. 6. Relevant Federal Rules Duplicating, Overlapping, or Conflicting With the NPRM The Department is not aware of any relevant Federal rules that conflict with this NPRM. VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 The RFA directs agencies to assess the impacts that various regulatory alternatives would have on small entities and to consider ways to minimize those impacts. As part of the settlement agreement, ECF No. 136, Hispanic Affairs Project, et al. v. Perez et al., the Department agreed to engage in rulemaking to propose to rescind § 655.215(b)(2). The Department invites public comment on whether viable alternatives exist that would reduce the burden on small entities while remaining consistent with statutory requirements and the objectives of the NPRM. C. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its attendant regulations, 5 CFR part 1320, require the Department to consider the agency’s need for its information collections and their practical utility, the impact of paperwork and other information collection burdens imposed on the public, and how to minimize those burdens. This NPRM does not require a collection of information subject to approval by OMB under the PRA, or affect any existing collections of information. D. Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on state, local, and tribal governments. Title II of the UMRA requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in $100 million or more in expenditures (adjusted annually for inflation) in any 1 year by state, local, and tribal governments, in the aggregate, or by the private sector. A Federal mandate is defined in 2 U.S.C. 658, in part, as any provision in a regulation that imposes an enforceable duty upon state, local, or tribal governments, or the private sector. Following consideration of these factors, the Department has concluded that, if finalized as proposed, this proposed rule would contain no unfunded Federal mandates, including no ‘‘Federal intergovernmental mandate’’ or ‘‘Federal private sector mandate.’’ This NPRM, if finalized as proposed, would not exceed the $100 million in expenditures in any 1 year when adjusted for inflation, and this rulemaking does not contain such a mandate. The requirements of Title II of PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 the UMRA, therefore, do not apply, and the Department is not required to prepare a statement under the UMRA. E. Executive Order 13132, Federalism The Department has concluded that this NPRM, if finalized as proposed, does not have federalism implications, because it would not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Accordingly, E.O. 13132 requires no further agency action or analysis. F. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments After consideration, the Department has determined that this NPRM, if finalized as proposed, would not result in ‘‘tribal implications,’’ because it would not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and tribal governments. Accordingly, E.O. 13175 would require no further agency action or analysis. List of Subjects in 20 CFR Part 655 Administrative practice and procedure, Employment, Employment and training, Enforcement, Foreign workers, Forest and forest products, Fraud, Health professions, Immigration, Labor, Longshore and harbor work, Migrant workers, Nonimmigrant workers, Passports and visas, Penalties, Reporting and recordkeeping requirements, Unemployment, Wages, Working conditions. For the reasons set forth above, the Department proposes to amend part 655 of title 20 of the Code of Federal Regulations as follows: PART 655—TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES 1. The authority citation for part 655 continues to read as follows: ■ Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C. 1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and 1288(c) and (d); sec. 3(c)(1), Pub. L. 101–238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101–649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102– 232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103–206, 107 Stat. 2428; sec. 412(e), Pub. L. 105–277, 112 Stat. 2681 (8 U.S.C. 1182 note); sec. 2(d), Pub. L. E:\FR\FM\06MYP1.SGM 06MYP1 Federal Register / Vol. 86, No. 86 / Thursday, May 6, 2021 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS 106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107–296, 116 Stat. 2135, as amended; Pub. L. 109–423, 120 Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115–218, 132 Stat. 1547 (48 U.S.C. 1806). Subpart A issued under 8 CFR 214.2(h). Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; and 8 CFR 214.2(h). Subpart E issued under 48 U.S.C. 1806. Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec. 323(c), Pub. L. 103–206, VerDate Sep<11>2014 16:33 May 05, 2021 Jkt 253001 107 Stat. 2428; and 28 U.S.C. 2461 note, Pub. L. 114–74 at section 701. Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub. L. 102–232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e), Pub. L. 105–277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461 note, Pub. L. 114–74 at section 701. Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and 1182(m); sec. 2(d), Pub. L. 106–95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); Pub. L. 109–423, 120 Stat. 2900; and 8 CFR 214.2(h). PO 00000 Frm 00016 Fmt 4702 Sfmt 9990 § 655.215 24377 [Amended] 2. Amend § 655.215 by removing paragraph (b)(2) and redesignating paragraph (b)(3) as paragraph (b)(2). ■ Suzan G. LeVine, Principal Deputy Assistant Secretary for Employment and Training, Labor. [FR Doc. 2021–09639 Filed 5–5–21; 8:45 am] BILLING CODE 4510–FP–P E:\FR\FM\06MYP1.SGM 06MYP1

Agencies

[Federal Register Volume 86, Number 86 (Thursday, May 6, 2021)]
[Proposed Rules]
[Pages 24368-24377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09639]

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

[DOL Docket No. ETA-2020-0005]
RIN 1205-AB99

Adjudication of Temporary and Seasonal Need for Herding and
Production of Livestock on the Range Applications Under the H-2A
Program

AGENCY: Employment and Training Administration (ETA), Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of Labor (the Department) proposes to amend its
regulations regarding the adjudication of temporary need for employers
seeking herding or production of livestock on the range job
opportunities under the H-2A program. Consistent with a court-approved
settlement agreement, this notice of proposed rulemaking (NPRM or
proposed rule) would rescind the regulation that governs the period of
need for such job opportunities to ensure the Department's adjudication
of temporary or seasonal need is conducted in the same manner for all
applications for temporary agricultural labor certification.

DATES: Interested persons are invited to submit written comments on the
proposed rule on or before June 7, 2021.

ADDRESSES: You may submit comments, identified by Regulatory
Information Number (RIN) 1205-AB99, by the following method:
Electronic Comments: Comments may be sent via https://www.regulations.gov, a Federal E-Government website that allows the
public to find, review, and submit comments on documents that agencies
have published in the Federal Register and that are open for comment.
Simply type in `1205-AB99' (in quotes) in the Comment or Submission
search box, click Go, and follow the instructions for submitting
comments.
Instructions: All submissions must include the agency's name and
the RIN 1205-AB99. Please be advised that comments received will become
a matter of public record and will be posted without change to https://www.regulations.gov, including any personal information provided.
Docket: For access to the docket to read background documents or
comments, go to the Federal e-Rulemaking Portal at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office
of Foreign Labor Certification, Employment and Training Administration,
Department of Labor, 200 Constitution Avenue NW, Room N-5311,
Washington, DC 20210, telephone: (202) 693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access
the telephone number above via TTY/TDD by calling the toll-free Federal
Information Relay Service at 1 (877) 889-5627.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background on 20 CFR Part 655, Subpart B
A. Statutory Framework
B. Regulatory Framework
C. The Hispanic Affairs Project Litigation and Need for
Rulemaking
II. Discussion of Proposed Revision to 20 CFR Part 655, Subpart B
III. Administrative Information

I. Background on 20 CFR Part 655, Subpart B

A. Statutory Framework

The H-2A nonimmigrant worker visa program enables U.S. agricultural
employers to employ foreign workers on a temporary basis to perform
temporary or seasonal agricultural labor or services where the
Secretary of Labor (Secretary) certifies that (1) there are not
sufficient workers who are able, willing, and qualified, and who will
be available at the time and place needed to perform the labor or
services involved in the petition; and (2) the employment of the aliens
in such labor or services will not adversely affect the wages and
working conditions of workers in the United States similarly employed.
See section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act
(INA or the Act), as amended by the Immigration Reform and Control Act
of 1986 (IRCA), 8 U.S.C. 1101(a)(15)(H)(ii)(a); section 218(a)(1) of
the INA, 8 U.S.C. 1188(a)(1). The Secretary has delegated the authority
to issue temporary agricultural labor certifications to the Assistant
Secretary for Employment and Training, who in turn has delegated that
authority to ETA's Office of Foreign Labor Certification (OFLC).
Secretary's Order 06-2010 (Oct. 20, 2010).\1\ Once OFLC issues a
temporary agricultural labor certification, employers may then

[[Page 24369]]

petition the U.S. Department of Homeland Security (DHS) to employ a
nonimmigrant worker in the United States in the H-2A visa
classification.
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\1\ In addition, the Secretary has delegated to the Department's
Wage and Hour Division the responsibility under section 218(g)(2) of
the INA, 8 U.S.C. 1188(g)(2), to assure employer compliance with the
terms and conditions of employment under the H-2A program.
Secretary's Order 01-2014 (Dec. 19, 2014).
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B. Regulatory Framework

Since 1987, the Department has operated the H-2A temporary
agricultural labor certification program under regulations promulgated
pursuant to the INA.\2\ With limited exceptions, including those set
forth below, the Department's current regulations governing the H-2A
program were published in 2010.\3\ The standards and procedures
applicable to the certification and employment of workers under the H-
2A program are found in 20 CFR part 655, subpart B and 29 CFR part
501.\4\
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\2\ The Immigration and Nationality Act of 1952 created the H-2
temporary worker program. Public Law 82-414, 66 Stat. 163. In 1986,
IRCA divided the H-2 program into separate agricultural and
nonagricultural temporary worker programs. See Public Law 99-603,
section 301, 100 Stat. 3359 (1986). The H-2A agricultural worker
program designation corresponds to the statute's agricultural worker
classification in 8 U.S.C. 1101(a)(15)(H)(ii)(a).
\3\ Temporary Agricultural Employment of H-2A Aliens in the
United States, 75 FR 6884 (Feb. 12, 2010).
\4\ The Department is currently engaged in a separate rulemaking
that seeks to amend these regulations as they pertain to the H-2A
program. Temporary Agricultural Employment of H-2A Nonimmigrants in
the United States, 84 FR 36168 (July 26, 2019) (2019 NPRM). The 2019
NPRM proposed amendments to the current regulations that focus on
modernizing the H-2A program and eliminating inefficiencies. The
2019 NPRM also proposed to amend the regulations for enforcement of
contractual obligations for temporary foreign agricultural workers
and the Wagner-Peyser Act regulations to provide consistency with
revisions to H-2A program regulations governing the temporary
agricultural labor certification process.
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Historically, employers in a number of states (primarily but not
exclusively in the western continental United States) have used what is
now the H-2A program to bring in foreign workers to work as sheep and
goat herders.\5\ Beginning in 1989, and consistent with Congress'
historical approach, the Department established variances from certain
H-2A regulatory requirements and procedures through sub-regulatory
guidance to allow employers of open range sheep and goat herders to use
the H-2A program. The Department established similar variances or
``special procedures'' through sub-regulatory guidance in 2007 for
employers seeking to employ H-2A workers for open range herding or
production of livestock positions. In 2015, the Department incorporated
these ``special procedures'' provisions for the employment of workers
in the herding and production of livestock on the range, with some
modifications, into its H-2A regulation. Temporary Agricultural
Employment of H-2A Foreign Workers in the Herding or Production of
Livestock on the Range in the United States, 80 FR 62958 (Oct. 16,
2015) (2015 Rule).\6\ The variances codified in the 2015 Rule continued
the agency's recognition of the unique occupational characteristics of
herding positions, which involve spending extended periods of time
herding animals across remote range lands and being on call to protect
and maintain herds for up to 24 hours a day, 7 days a week. These
variances are codified at Sec. Sec. 655.200 through 655.235.\7\
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\5\ As the Department explained in its 2015 herder rulemaking,
Congress enacted statutes during the early 1950s authorizing the
permanent admission of a certain number of ``foreign workers skilled
in sheepherding.'' See Temporary Agricultural Employment of H-2A
Foreign Workers in the Herding or Production of Livestock on the
Open Range in the United States, 80 FR 20300, 20301-20302 (Apr. 15,
2015). Congress subsequently permitted these special laws to expire
and signaled that sheepherders should be admitted under the existing
temporary (then H-2) program. Id.; see also Changes to Requirements
Affecting H-2A Nonimmigrants, 73 FR 76891, 76906-76907 (Dec. 18,
2008).
\6\ The 2015 Rule followed litigation in Mendoza v. Perez, in
which the U.S. Court of Appeals for the District of Columbia Circuit
held the special procedures pertaining to sheep, goat, and other
open range herding or production of livestock were subject to the
Administrative Procedure Act's (APA) notice and comment
requirements. 754 F.3d 1002, 1024 (D.C. Cir. 2014); see Mendoza v.
Perez, 72 F. Supp. 3d 168, 175 (D.D.C. 2014) (remedial order setting
a rulemaking schedule).
\7\ The 2019 NPRM proposed clarifying and technical revisions to
certain provisions for employment of workers in herding and
production of livestock on the range (e.g., portions of 20 CFR
655.205, 655.211, 655.220, and 655.225) that are not the subject of
this proposal. 84 FR 36168, 36220-21. The 2019 NPRM also proposed to
incorporate into the H-2A regulations, with some modifications, the
standards and procedures currently found in Training and Employment
Guidance Letters related to animal shearing, commercial beekeeping,
and custom combining, and to rescind the general provision that
allows for the creation of ``special procedures'' (i.e., sub-
regulatory variances from the regulations). Id. at 36171-73.
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Section 101(a)(15)(H)(ii)(a) of the INA permits only ``agricultural
labor or services . . . of a temporary or seasonal nature'' to be
performed under the H-2A visa category. 8 U.S.C. 1101(a)(15)(H)(ii)(a).
Thus, as part of the Department's adjudication of applications for
temporary agricultural labor certification, the Department assesses on
a case-by-case basis whether the employer has established a temporary
or seasonal need for the agricultural work to be performed. See 20 CFR
655.161(a). In its initial rulemaking on the H-2A program in 1987, the
Department explained that it would be appropriate for an employer to
apply annually for recurring job opportunities in the same occupation
when it involved ``truly `seasonal' employment,'' but acknowledged that
``the longer the employer needs a `temporary' worker, the more likely
it would seem that the job has in fact become a permanent one.'' Labor
Certification Process for the Temporary Employment of Aliens in
Agriculture and Logging in the United States, 52 FR 20496, 20498 (June
1, 1987). The Department's current regulations, which adopted DHS's
definition of ``temporary or seasonal nature,'' specify that employment
is of a temporary nature ``where the employer's need to fill the
position with a temporary worker will, except in extraordinary
circumstances, last no longer than 1 year,'' and ``of a seasonal nature
where it is tied to a certain time of year by an event or pattern, such
as a short annual growing cycle or a specific aspect of a longer cycle,
and requires labor levels far above those necessary for ongoing
operations.'' 20 CFR 655.103(d); 8 CFR 214.2(h)(5)(iv)(A); 75 FR 6884,
6890 (adopting DHS's definition ``was not intended to create any
substantive change in how the Department administers the program'').
DHS regulations further provide that the Department's finding that
employment is of a temporary or seasonal nature is ``normally
sufficient'' for the purpose of an H-2A petition, but state that
notwithstanding this finding, DHS adjudicators will not find employment
to be temporary or seasonal in certain situations, such as when
``substantial evidence'' exists that the employment is not temporary or
seasonal. 8 CFR 214.2(h)(5)(iv)(B).
Notwithstanding the regulatory definition found in 20 CFR
655.103(d) and 8 CFR 214.2(h)(5)(iv)(A), a rancher seeking to employ a
sheep or goat herder under the 2015 Rule could continue to seek a
temporary agricultural labor certification for up to a 364-day period,
as it could under the special procedures that preceded the rule. 80 FR
62958, 62999-63000; see 20 CFR 655.215(b)(2) (``The period of need
identified on the H-2A Application for Temporary Employment
Certification and job order for range sheep or goat herding or
production occupations must be no more than 364 calendar days.''). The
2015 Rule also restricted range livestock occupations to periods of
need lasting not more than 10 months. 80 FR 62958, 63000; see 20 CFR
655.215(b)(2) (``The period of need identified on the H-2A Application
for Temporary Employment Certification and job order for range herding
or production of cattle, horses, or other domestic hooved livestock,
except sheep and goats, must be for no more than 10 months.''). For

[[Page 24370]]

the reasons discussed below, including a recent court decision and
related settlement agreement, the Department is now proposing to
rescind Sec. 655.215(b)(2) in its entirety.

C. The Hispanic Affairs Project Litigation and Need for Rulemaking

On September 22, 2015, four sheepherders and a nonprofit member
organization for Hispanic immigrant workers filed a lawsuit in the U.S.
District Court for the District of Columbia challenging aspects of the
2015 Rule. Hispanic Affairs Project v. Perez, 206 F. Supp. 3d 348
(D.D.C. 2016).\8\ As relevant to this rulemaking, the plaintiffs
challenged the Department's decision to allow employers seeking
temporary agricultural labor certifications for sheep or goat herder
positions to apply for periods of need that last up to 364 days at a
time. See Hispanic Affairs Project v. Acosta, 263 F. Supp. 3d 160, 182
(D.D.C. 2017) (citing 20 CFR 655.215(b)(2)). The plaintiffs also
challenged DHS's alleged practice of automatically approving sheep and
goat herder petitions for recurring periods up to 364 days, asserting
that the Department's regulation at Sec. 655.215(b)(2) and DHS's
alleged practice did not conform with the INA or the Departments'
regulations, in violation of the APA. See id. Specifically, the
plaintiffs argued Sec. 655.215(b)(2) and DHS's alleged practice are
inconsistent with 8 U.S.C. 1101(a)(15)(H)(ii)(a), which provides that
H-2A visas be only for ``temporary'' work, and conflicts with the
Departments' regulations defining when employment is of a ``temporary
or seasonal nature.'' See id.; compare 20 CFR 655.103(d) and 8 CFR
214.2(h)(5)(iv)(A) (employer's ``need to fill the position with a
temporary worker will . . . last no longer than one year'') with 20 CFR
655.215(b)(2) (``The period of need identified on the [application and
job order] . . . must be no more than 364 calendar days.''). The
district court dismissed the challenge on procedural grounds,
concluding the plaintiffs waived their claim against the Department and
did not properly or timely raise their claim against DHS. Id. at 185-
86, 190.\9\
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\8\ On April 3, 2017, the district court granted two employer
associations' motion to intervene as defendants in the litigation.
Minute Order Granting Mountain Plains Agricultural Service and
Western Range Association's Joint Motion to Intervene, Hispanic
Affairs Project, et al. v. Perez et al., No. 15-cv-1562 (D.D.C. Apr.
3, 2017).
\9\ Plaintiffs also challenged two other aspects of the 2015
Rule: (1) Certain definitions and requirements that limit the scope
and location of work that H-2A workers in sheep and goat herding
positions may perform, 80 FR 62958, 62963-73; and (2) the
methodology by which the Department calculates the minimum required
wage that such workers (and any non-H-2A workers in corresponding
employment) must be offered and paid, id. at 62986-96. The
Department and DHS prevailed on these issues. See Hispanic Affairs
Project v. Acosta, 901 F.3d 378, 391-96 (D.C. Cir. 2018), aff'g in
part 263 F. Supp. 3d 160, 190-207 (D.D.C. 2017).
---------------------------------------------------------------------------

On appeal, the U.S. Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) reversed and remanded the district court's
decision on these claims for a resolution on the merits. Hispanic
Affairs Project v. Acosta, 901 F.3d 378, 396-97 (D.C. Cir. 2018). The
court held the plaintiffs preserved their challenge to the Department's
decision in the 2015 Rule to classify sheep and goat herding as
``temporary'' employment. Id. at 385. In dicta, the court noted the
``agency has no power under the statute--it is actually forbidden--to
include non-temporary or non-seasonal workers in the H-2A program.''
Id. at 389. The court also held the complaint adequately raised a
challenge to DHS's alleged practice of extending ``temporary'' H-2A
petitions beyond the regulatory definition of temporary employment. Id.
at 385, 388. Taking the evidence submitted by the plaintiffs as true,
the court concluded the plaintiffs had ``plausibly shown that [DHS]'s
de facto policy of authorizing long-term visas is arbitrary,
capricious, and contrary to law, in violation of the APA and [INA]
because it `authorizes the creation of permanent herder jobs that are
not temporary or seasonal.' '' Id. at 386 (original alterations
omitted).
Following the D.C. Circuit's decision, the parties reached a
settlement agreement that was approved by the district court on
November 12, 2019. Order Approving the Parties' Settlement Agreement,
ECF No. 136, Hispanic Affairs Project, et al. v. Perez et al., No. 15-
cv-1562 (D.D.C. Nov. 12, 2019). As part of the settlement, the
Department agreed to engage in rulemaking to propose to rescind Sec.
655.215(b)(2) and DHS, through U.S. Citizenship and Immigration
Services (USCIS), agreed to publish a policy memorandum that provided
guidance on the determination of temporary or seasonal need for H-2A
sheep and goat herder petitions. Joint Status Report at 1, ECF No. 135,
Hispanic Affairs Project, et al. v. Perez et al., No. 15-cv-1562
(D.D.C. Nov. 8, 2019) (noting ``Intervenor Defendants do not object to
the Settlement Agreement''). On November 14, 2019, USCIS issued a draft
of the memorandum for public comment. After a 30-day public comment
period, USCIS published a final memorandum on February 28, 2020, which
became effective on June 1, 2020. See USCIS, Policy Memorandum: Updated
Guidance on Temporary or Seasonal Need for H-2A Petitions Seeking
Workers for Range Sheep and/or Goat Herding or Production (Feb. 28,
2020) (USCIS Policy Memorandum).\10\
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\10\ See https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2020/2-PMH2A-SeasonalSheepGoatHerder_PolicyMemo.pdf.
---------------------------------------------------------------------------

The Department's proposed rescission of Sec. 655.215(b)(2) would
eliminate that provision's presumptive period of need for employment
involving range sheep or goat herding and absolute restriction on the
period of need for employment involving other range livestock
activities. The 2015 Rule suggested that the unique nature and history
of herding work permitted a variance, on an occupational basis, from
the standard H-2A requirements governing the adjudication of an
employer's temporary need. As such, Sec. 655.215(b)(2) permits
certification of a specific period of time without requiring the
Department to assess the true nature of the labor or services to be
provided by the H-2A nonimmigrant. The Department, however, is now
proposing to rescind Sec. 655.215(b)(2) so that all employers applying
for temporary agricultural labor certifications must individually
demonstrate their need for the agricultural labor or services to be
performed is temporary or seasonal in nature, regardless of occupation.
The Department believes this proposed rescission of Sec. 655.215(b)(2)
is not only consistent with the D.C. Circuit's decision in Hispanic
Affairs Project and the guidance issued by USCIS but also better
complies with the requirements of the INA implemented in the
Departments' regulations that define when employment is of a
``temporary or seasonal nature.'' 8 U.S.C. 1101(a)(15)(H)(ii)(A)
(defining an H-2A nonimmigrant as an alien coming to perform services
of a temporary or seasonal nature); 20 CFR 655.103(d); 75 FR 6884, 6890
(adopting DHS's definition of ``temporary or seasonal nature'' set
forth in 8 CFR 214.2(h)(5)(iv)(A)).

II. Discussion of Proposed Revision to 20 CFR Part 655, Subpart B

The Department proposes to rescind Sec. 655.215(b)(2) so that the
temporary or seasonal need of an employer seeking to fill a herding or
production of livestock on the range position would be adjudicated
according to the requirement in Sec. 655.103(d) that governs the
adjudication of employment of a temporary or seasonal nature for all

[[Page 24371]]

other H-2A applications. See 20 CFR 655.200(a) (noting that employers
whose job opportunities meet the qualifying criteria under Sec. Sec.
655.200-655.235 must fully comply with all the requirements of
Sec. Sec. 655.100-655.185 unless otherwise specified in Sec. Sec.
655.200-655.235).
In particular, the Department would examine--on a case-by-case
basis and taking into consideration the totality of the facts
presented--whether an employer's need to fill a herding or production
of livestock on the range position is of a temporary or seasonal
nature, as those terms are defined in the Department's and DHS's
regulations. See 20 CFR 655.103(d); 8 CFR 214.2(h)(5)(iv)(A). Section
655.103(d) states that employment ``is of a temporary nature where the
employer's need to fill the position with a temporary worker will,
except in extraordinary circumstances, last no longer than 1 year.''
The same section states ``employment is of a seasonal nature where it
is tied to a certain time of year by an event or pattern, such as a
short annual growing cycle or a specific aspect of a longer cycle, and
requires labor levels far above those necessary for ongoing
operations.'' This proposal does not alter the regulatory definition
and standards under which the Department adjudicates temporary or
seasonal need for all other H-2A job opportunities under Sec.
655.103(d).
Although recurring year-round activities cannot be classified as
temporary, see 75 FR 6884, 6891, the Department recognizes that some
herder employers may be able to establish a need to fill positions on a
recurring annual basis consistent with the definition of employment of
a seasonal nature in Sec. 655.103(d). See 80 FR 62958, 62999-63000
(2015 Rule describing comments that delineated seasonal aspects of
herder work); 52 FR 20496, 20498 (acknowledging it is appropriate to
apply annually for truly ``seasonal'' employment); see also USCIS
Policy Memorandum at 3 n.3 (explaining that an employer's need for
workers that recurs annually at a given time of year does not mean its
need is permanent in nature as employment of a seasonal nature is
defined as being tied to a certain time of year). The Department also
acknowledges that some employers may have a ``temporary'' need to fill
herding and range livestock job opportunities, which is permissible
provided they can show the nature of their need is temporary under
Sec. 655.103(d). See Temporary Workers Under Sec. 301 of the
Immigration Reform and Control Act, 11 Op. O.L.C. 39, 40 & n.4 (1987)
(noting `` `temporary' means something other than seasonal'' and
explaining employers may fill ``permanent jobs that an employer needs
to fill on a temporary basis--for example, because the regular American
employee has fallen ill or extra hands are needed during a busy
period''); 11 Op. O.L.C. at 42 (``The nature of the job itself is
irrelevant. What is relevant is whether the employer's need is truly
temporary.'').
The proposed rule aligns the Department's adjudication of the
temporary or seasonal need of herder applications with corresponding
changes DHS has implemented in the USCIS Policy Memorandum. The
memorandum explains, for example, that USCIS will adjudicate H-2A sheep
and goat herder petitions filed on or after June 1, 2020, on a case-by-
case basis, taking into consideration the totality of the facts
presented, and in the same manner as all other H-2A petitions. USCIS
Policy Memorandum at 1, 9. Under this memorandum, past periods of need
approved by USCIS prior to June 1, 2020, will be one element considered
when determining whether an H-2A petition demonstrates a true temporary
or seasonal need. Id. at 9.
The Department requests comments on all issues related to this
proposed rule, including economic or other regulatory impacts of this
rule on the public. As noted above, on July 26, 2019, the Department
issued a separate notice of proposed rulemaking that proposed to amend
the regulations regarding the certification of temporary employment for
nonimmigrant workers employed in temporary or seasonal agricultural
employment and the enforcement of the contractual obligations
applicable to employers of such nonimmigrant workers. 84 FR 36168. In
the 2019 NPRM, the Department sought public comment on the possibility
of moving the adjudication of an employer's temporary or seasonal need
exclusively to DHS or exclusively to DOL. Id. at 36178. The 2019 NPRM
also proposed other amendments to the Department's regulations
governing the H-2A program at 20 CFR part 655, subpart B. Because the
comment period for that rulemaking closed on September 24, 2019, the
change proposed here--rescission of Sec. 655.215(b)(2)--does not
affect the request for comments in that NPRM. The Department expects to
publish a separate final rule for the 2019 NPRM, responding to public
comment on the proposals contained therein. The Department does not
anticipate the rulemaking associated with the 2019 NPRM will affect the
change proposed here and comments on the proposals contained in that
NPRM are outside the scope of this limited rulemaking. To the extent a
final rule associated with the 2019 NPRM substantively affects this
rulemaking, the Department will consider, as appropriate, extending or
reopening the public comment period for this proposal.

III. Administrative Information

A. Executive Order 12866, Regulatory Planning and Review; and Executive
Order 13563, Improved Regulation and Regulatory Review

Under E.O. 12866, the Office of Management and Budget (OMB)'s
Office of Information and Regulatory Affairs determines whether a
regulatory action is significant and therefore, subject to the
requirements of the E.O. and OMB review. Section 3(f) of E.O. 12866
defines a ``significant regulatory action'' as an action that is likely
to result in a rule that (1) has an annual effect on the economy of
$100 million or more, or adversely affects in a material way a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or state, local, or tribal governments or
communities (also referred to as economically significant); (2) creates
serious inconsistency or otherwise interferes with an action taken or
planned by another agency; (3) materially alters the budgetary impacts
of entitlement grants, user fees, or loan programs, or the rights and
obligations of recipients thereof; or (4) raises novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the E.O. This proposed rule is a
significant, but not economically significant, regulatory action under
Section 3(f) of E.O. 12866. The Department has prepared a Regulatory
Impact Analysis (RIA) in connection with this proposed rule, as
required under section 6(a)(3) of E.O. 12866.
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; the
regulation is tailored to impose the least burden on society,
consistent with achieving the regulatory objectives; and in choosing
among alternative regulatory approaches, the agency has selected those
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.

[[Page 24372]]

Overview of This Rule
The Department has determined that this proposed rule is necessary
as it would clarify the Department's adjudication of temporary or
seasonal need for herding and range livestock applications for
temporary agricultural labor certification under the H-2A program, and
would align that adjudication with the requirements of the INA. The
proposed rule would also standardize the Department's adjudication of
temporary need under the H-2A program. The Department's definition of
``temporary or seasonal nature'' for the H-2A program, with the
exception of its current definition of ``temporary'' for herding and
range livestock occupations, is consistent with the Department of
Homeland Security's definition specifying that employment is of a
temporary nature ``where the employer's need to fill the position with
a temporary worker will, except in extraordinary circumstances, last no
longer than 1 year,'' and ``of a seasonal nature where it is tied to a
certain time of year by an event or pattern, such as a short annual
growing cycle or a specific aspect of a longer cycle, and requires
labor levels far above those necessary for ongoing operations.'' 20 CFR
655.103(d); 8 CFR 214.2(h)(5)(iv)(A).
Notwithstanding the regulatory definition found in 20 CFR
655.103(d) and 8 CFR 214.2(h)(5)(iv)(A), the 2015 Rule allowed
employers of sheep and goat herders to apply for a temporary
agricultural labor certification for a period of up to 364 days.
Conversely, the same rule limited employers of range livestock
occupations to a temporary agricultural labor certification with a
period of need not to exceed 10 months. As discussed above, an
appellate court held that plaintiffs preserved their challenge to the
Department's decision in the 2015 Rule to classify sheep and goat
herding as ``temporary'' employment. The court additionally held the
complaint adequately raised a challenge to DHS's alleged practice of
extending ``temporary'' H-2A petitions beyond the regulatory definition
of temporary employment. Taking the evidence submitted by the
plaintiffs as true, the court concluded the plaintiffs had plausibly
shown DHS's alleged practice of automatically extending H-2A petitions
would convert job opportunities that should be temporary or seasonal in
nature into permanent positions, which is inconsistent with Section
101(a)(15)(H)(ii)(a) of the INA. The parties subsequently reached a
settlement agreement in which the Department agreed to engage in
rulemaking to propose to rescind Sec. 655.215(b)(2) and DHS, through
USCIS, agreed to publish a policy memorandum that provided guidance on
the determination of temporary or seasonal need for H-2A sheep and goat
herder petitions.
In this proposed rule, the Department proposes to rescind Sec.
655.215(b)(2), which would eliminate that provision's presumptive
period of need for employment involving range herding and absolute
restriction on the period of need for employment involving range
livestock activities. Instead, all employers applying for H-2A
temporary agricultural labor certifications under the proposed rule
must individually demonstrate that their need for workers is temporary
or seasonal, regardless of occupation.
Economic Impact
The Department estimates that the proposed rule, if finalized,
would result in costs to employers associated with their
familiarization with the rule. The cost of the proposed rule is
associated with rule familiarization requirements for all herding and
range livestock employers utilizing the H-2A program.
In addition to the rule familiarization cost, the Department
believes that employers may incur other costs from the implementation
of the proposed rule attributed to changes in business operations,
transportation, staffing turnover, and training requirements. As
explained above, although recurring year-round activities cannot be
classified as temporary, the Department recognizes that there may be
seasonal aspects of herder work for which employers may still establish
a need to fill positions on a recurring annual basis consistent with
the definition of employment of a ``seasonal'' nature in Sec.
655.103(d) and that some herder employers may also still present a need
that is truly ``temporary'' under Sec. 655.103(d) in certain
circumstances. The Department qualitatively discusses the potential
costs to employers incurred by the implementation of this rule but does
not quantify them due to a lack of available data and the wide spectrum
of possible responses by employers that cannot be predicted with
specificity. The Department seeks public comment on how these employers
may be impacted by the proposed change in regulation. Transfer payments
under the proposed rule, if finalized, would result from eliminating
the absolute restriction on the period of need for employment involving
other range livestock activities and the presumptive period of need for
employment involving range sheep or goat herding. In particular, some
employers engaged in non-sheep and/or goat herding activities \11\
could potentially extend their period of need beyond 10 months,
provided they can show the nature of their need is temporary.\12\ In
addition, sheep and/or goat herding employers whose need is temporary
or seasonal in nature and whose period of need currently exceeds 10
months would be expected to reduce their period of need to 10 months or
less.\13\ See the costs and transfer payments subsections below for a
detailed explanation.
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\11\ This includes range herding or production of cattle,
horses, or other domestic hooved livestock except sheep and goats.
\12\ For the purpose of this analysis, employers engaged in non-
sheep and/or goat herding activities with a minimum period of need
of 300 days and a maximum period of need of 308 days were used to
make the Department's transfer estimates.
\13\ The Department's records indicate that the majority of
employers engaged in sheep and/or goat herding occupations would
likely reduce their requested period of need to 10 months or less.
The Department used 300 days to represent a period of 10 months.
---------------------------------------------------------------------------

As shown in Exhibit 1, the Department estimates the changes
proposed in this rule would result in a quantified annualized cost of
$3,144 at a discount rate of 7 percent and $2,588 at a discount rate of
3 percent, as well as unquantified costs associated with changes in
business operations, transportation, staffing turnover, and training
requirements. Additionally, the proposed rule, if finalized, is
expected to result in transfers for all herding and range livestock
employers. Some employers engaged in non-sheep and/or goat herding
activities would incur a transfer from employers to employees due to
rescinding the restriction on the period of need for employment
involving range livestock activities. The Department estimates that the
proposed rule would result in annualized transfers of $95,556 at a
discount rate of 7 percent and $91,983 at a discount rate of 3 percent
for these employers. Furthermore, employers engaged in sheep and/or
goat herding activities would experience a transfer from employees to
employers due to a reduction in the allowed period of need for the
majority of the aforementioned employers. The Department estimates that
the proposed rule would result in annualized transfers of $8.42 million
at a discount rate of 7 percent and $8.11 million at a discount rate of
3 percent for these employers.

[[Page 24373]]

Exhibit 1--Estimated Costs and Transfer Payments of the Proposed Rule
----------------------------------------------------------------------------------------------------------------
Transfer payments Transfer payments
from employers of to employers of
Costs non-sheep and/or sheep and/or goat
goat herding herding
----------------------------------------------------------------------------------------------------------------
Undiscounted 10-Year Total............................ $22,079 $893,043 $78,731,848
10-Year Total with a Discount Rate of 3%.............. 22,079 784,637 69,174,659
10-Year Total with a Discount Rate of 7%.............. 22,079 671,143 59,168,812
Annualized at a Discount Rate of 3%................... 2,588 91,983 8,109,380
Annualized at a Discount Rate of 7%................... 3,144 95,556 8,424,308
----------------------------------------------------------------------------------------------------------------

The Department was unable to quantify some costs, cost savings, and
benefits of the proposed rule. The Department, however, invites
comments regarding the assumptions, data sources, and methodologies
used to estimate the costs and transfer payments from this proposed
rule.
i. Costs
a. Rule Familiarization Costs
Should the proposed rule take effect, herding and range livestock
employers would need to familiarize themselves with the new
regulations; consequently, this will impose a one-time cost in the
first year. The Department's analysis assumes that the changes
introduced by the rule would be reviewed by Human Resources Specialists
(SOC 13-1071). The median hourly wage for these workers is $29.77 per
hour.\14\ In addition, the Department assumes that benefits are paid at
a rate of 46 percent \15\ and overhead costs are paid at a rate of 17
percent of the base wage, resulting in a fully-loaded hourly wage of
$48.53.\16\ This hourly wage was multiplied by the estimated number of
herding and range livestock employers (910) \17\ and by the estimated
amount of time required to review the rule (.5 hours). This calculation
results in a one-time cost of $22,079 in the first year after the
proposed rule takes effect. The annualized cost over the 10-year period
is $2,588 and $3,144 at discount rates of 3 and 7 percent,
respectively.
---------------------------------------------------------------------------

\14\ Median hourly wage for Human Resources Specialists were
obtained from the Bureau of Labor Statistics Occupational Employment
Statistics Survey, May 2019, https://www.bls.gov/oes/current/oes131071.htm.
\15\ The benefits-earnings ratio is derived from the Bureau of
Labor Statistics' Employer Costs for Employee Compensation data
using variables CMU1020000000000D and CMU1030000000000D.
\16\ $29.77 + $29.77(0.46) + $29.77(0.17) = $48.53.
\17\ The Department's estimate of 910 unique employers is based
on H-2A certification data from Fiscal Years (FYs) 2017, 2018, and
2019. The Department identified the average number of unique
applicants engaged in sheep and/or goat herding activities across
FYs 2017, 2018, and 2019 (744). This was then added to the average
number of unique applicants engaged in non-goat/sheep and/or goat
herding activities across the same time period (166). 744 + 166 =
910.
---------------------------------------------------------------------------

b. Other Costs
The Department assumes some employers will experience increased
costs associated with changes in business operations, transportation,
staffing turnover, and training requirements under this proposed rule.
In accordance with the Department's current regulation, employers of
sheep and goat herders are permitted to apply for a temporary
agricultural labor certification for a period of up to 364 days. Under
the proposed rule if finalized, sheep and goat herding employers whose
need is temporary or seasonal in nature and whose period of need
currently exceeds 10 months would be expected to reduce their period of
need to 10 months or less. The Department notes that, in instances
where employers have recurring year-round labor needs that are actually
permanent, rather than temporary or seasonal in nature, the Department
expects some employers might utilize the employment-based immigrant
petition process to hire foreign workers, which includes options for
skilled workers, professionals, and other workers under 8 U.S.C.
1153(b)(3). The Department seeks comment on how employers might adjust
their business models to accommodate the reduction in the permitted
length of employment, and what effect this might have on costs of
operations. Although the Department does not anticipate the proposed
rule will have a significant adverse effect as employers must already
adjust to DHS's guidelines, the Department acknowledges that some
employers of sheep and goat herders will need to replenish their labor
supply by hiring additional U.S. workers to account for the reduced
period of need, or extending the work schedule for U.S. workers that
they employ if they are available. This may lead to increased costs due
to staffing turnovers, the need to train new employees, overtime
incurred due to increased work hours, as well as potential changes to
their business practices. The Department does not have data available
to assess how the universe of sheep and goat herding employers may be
impacted by this change and seeks public comment on how these employers
may be impacted by the proposed rule.
Transfers
The first category of transfers associated with this proposed rule
would be an employer to employee transfer incurred due to a potential
increase in the maximum period of need from 10 months up to 1 year, or
longer in extraordinary circumstances, for a small number of employers
engaged in non-sheep and/or goat herding who can demonstrate their need
is temporary.
Exhibit 2 presents the distribution of the period of need on
approved applications filed by unique employers of non-sheep and/or
goat herders during FYs 2017, 2018, and 2019.

Exhibit 2--Distribution of Period of Need for Unique Certified Employers of Non-Sheep/Goat Herding by Year
[FY 17-19]
----------------------------------------------------------------------------------------------------------------
Year
Period of need (days) -----------------------------------------------
2017 2018 2019
----------------------------------------------------------------------------------------------------------------
0-70............................................................ 5 5 10

[[Page 24374]]

71-140.......................................................... 15 16 17
141-210......................................................... 10 10 7
210-299......................................................... 27 47 48
300-308......................................................... 72 103 107
>308............................................................ 0 0 0
Number of Unique Employers...................................... 129 181 189
-----------------------------------------------
Average Period of Need...................................... 254 260 257
----------------------------------------------------------------------------------------------------------------

Transfer payments were calculated by identifying unique employers
engaged in non-sheep and/or goat herding from FYs 2017, 2018, and
2019.\18\ The Department then identified employers within this group of
unique employers whose applications contained periods of need between
300 and 308 days. The Department identified this subset because some
employers whose applications contained periods of need that fall within
this range are likely to extend their period of need up to a year, or
longer in extraordinary circumstances, if they can demonstrate their
need is temporary in nature (i.e., their need is not for recurring
year-round activities). The Department expects that an infrequent
number of employers of non-sheep and/or goat herders would extend their
period of need beyond 10 months. For this analysis, the Department
conservatively assumes that no more than 10 percent of the unique
employers who were identified to have a period of need between 300 and
308 days would apply, and be approved by OFLC, to extend their period
of temporary need beyond a 10-month period.\19\ The Department invites
comments regarding the assumptions on the percentage of unique
employers affected. Based on OFLC's performance data, the Department
estimated the impact of extending the period of need by multiplying the
number of workers certified for each of the unique non-sheep and/or
goat herding employers by the basic rate of pay offered to these
workers each year. The figures for each year were then multiplied by 2
in order to estimate the impact from an additional two months of need,
which yields an annualized transfer of $95,556 at a discount rate of 7
percent and $91,983 at a discount rate of 3 percent.
---------------------------------------------------------------------------

\18\ Based on FYs 2017, 2018, and 2019 performance data obtained
from OFLC, the Department estimates that the number of non-sheep
and/or goat herding employers is unlikely to increase over the
rule's 10-year time forecast.
\19\ The Department assumes a small percentage of the unique
employers who were identified to have a period of need between 300
and 308 days will apply to extend their period of temporary need
beyond a 10-month period up to 1 year, or longer in extraordinary
circumstances.
---------------------------------------------------------------------------

The second category of transfers associated with this proposed rule
would be an employee to employer transfer incurred due to potential
reductions in sheep and/or goat herding employers' period of need from
a maximum of 364 days to 10 months or less for annually recurring
applications.\20\
---------------------------------------------------------------------------

\20\ The Department's analysis of employers of sheep and goat
herders represents the transfer from employer to employee. The
Department assumes that in some instances that employers will seek
to replace H-2A employees who have met the period of need threshold
with U.S. employees, which would constitute a transfer between H-2A
employees and U.S. employees. This potential transfer could not be
evaluated due to data limitations.
---------------------------------------------------------------------------

Exhibit 3 presents the distribution of the period of need on
approved applications filed by unique employers of sheep and/or goat
herders during FYs 2017, 2018, and 2019.

Exhibit 3--Distribution of Period of Need for Unique Certified Employers of Sheep/Goat Herding by Year
[FY 17-19]
----------------------------------------------------------------------------------------------------------------
Year
Period of need (days) -----------------------------------------------
2017 2018 2019
----------------------------------------------------------------------------------------------------------------
0-70............................................................ 0 2 3
71-140.......................................................... 1 4 9
141-210......................................................... 6 5 3
210-299......................................................... 4 7 7
>299............................................................ 743 673 761
Number of Unique Employers...................................... 754 691 783
-----------------------------------------------
Average Period of Need...................................... 360 357 356
----------------------------------------------------------------------------------------------------------------

Transfer payments were calculated by identifying unique employers
engaged in sheep and/or goat herding from FYs 2017, 2018, and 2019.\21\
The Department identified employers within this group of unique
employers whose applications contained a period of need of 300 days or
more. Based on OFLC's performance data, the Department estimated the
impact of reducing the period of eligibility by multiplying the number
of workers certified for each of the unique sheep and/or goat herding
employers by the basic rate of pay offered to these workers each year.
The figures for each

[[Page 24375]]

year were then multiplied by the number of days requested for the
period of need of 300 days or more in order to estimate the impact from
reducing the period of need to 10 months or less, which yields an
annualized transfer of $8,424,308 at a discount rate of 7 percent and
$8,109,380 at a discount rate of 3 percent.
---------------------------------------------------------------------------

\21\ Based on FYs 2017, 2018, and 2019 performance data obtained
from OFLC.
---------------------------------------------------------------------------

ii. Benefits
By rescinding 20 CFR 655.215(b)(2), the Department standardizes the
adjudication of temporary need under the H-2A program and aligns the
Department's adjudication of the temporary or seasonal need of herder
applications with corresponding changes DHS has implemented in the
USCIS Policy Memorandum. Furthermore, the proposed rescission of Sec.
655.215(b)(2) better complies with pertinent provisions of the INA and
the Departments' applicable implementing regulations that define when
employment is of a ``temporary or seasonal nature.'' Therefore, this
proposed rule aims to help ensure the employment of H-2A workers in
herding and range livestock operations does not adversely affect the
wages and working conditions of workers in the United States similarly
employed.

B. Regulatory Flexibility Analysis and Small Business Regulatory
Enforcement Fairness Act and Executive Order 13272: Proper
Consideration of Small Entities in Agency Rulemaking

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies
engaged in rulemaking to consider the impact of their proposals on
small entities, consider alternatives to minimize that impact, and
solicit public comment on their analyses. The RFA requires the
assessment of the impact of a regulation on a wide range of small
entities, including small businesses, not-for-profit organizations, and
small governmental jurisdictions. Agencies must perform a review to
determine whether a proposed or final rule would have a significant
economic impact on a substantial number of small entities. 5 U.S.C.
603, 604. If the determination is that it would, the agency must
prepare a regulatory flexibility analysis as described in the RFA. Id.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, the RFA provides that the head of the agency
may so certify and a regulatory flexibility analysis is not required.
See 5 U.S.C. 605. The certification must include a statement providing
the factual basis for this determination, and the reasoning should be
clear.
The Department does not expect that this NPRM will have a
significant economic impact on a substantial number of small entities.
However, the Department is publishing this Initial Regulatory
Flexibility Analysis (IRFA) to invite public comment on all aspects of
this IRFA, including the estimates related to the number of small
entities affected by the NPRM and expected costs. The Department also
invites public comment on whether viable alternatives exist that would
reduce the burden on small entities while remaining consistent with
statutory requirements and the objectives of the NPRM.
1. Why the Department Is Considering Action
The Department has determined that this proposed rule is necessary
as it would clarify the Department's adjudication of temporary or
seasonal need for herding and range livestock applications for
temporary agricultural labor certification under the H-2A program, and
would align that adjudication with the requirements of the INA. The
proposed rule would also standardize the Department's adjudication of
temporary need under the H-2A program. The Department's definition of
``temporary or seasonal nature'' for the H-2A program, with the
exception of its current definition of ``temporary'' for herding and
range livestock occupations, is consistent with the Department of
Homeland Security's definition specifying that employment is of a
temporary nature ``where the employer's need to fill the position with
a temporary worker will, except in extraordinary circumstances, last no
longer than 1 year,'' and ``of a seasonal nature where it is tied to a
certain time of year by an event or pattern, such as a short annual
growing cycle or a specific aspect of a longer cycle, and requires
labor levels far above those necessary for ongoing operations.'' 20 CFR
655.103(d); 8 CFR 214.2(h)(5)(iv)(A).
2. Objectives of and Legal Basis for the NPRM
The Department's proposed rescission of Sec. 655.215(b)(2) would
eliminate that provision's presumptive period of need for employment
involving range sheep or goat herding and absolute restriction on the
period of need for employment involving other range livestock
activities. The 2015 Rule suggested that the unique nature and history
of herding work permitted a variance, on an occupational basis, from
the standard H-2A requirements governing the adjudication of an
employer's temporary need. As such, Sec. 655.215(b)(2) permits
certification of a specific period of time without requiring the
Department to assess the true nature of the labor or services to be
provided by the H-2A nonimmigrant. The Department, however, is now
proposing to rescind Sec. 655.215(b)(2) so that all employers applying
for temporary agricultural labor certifications must individually
demonstrate their need for the agricultural labor or services to be
performed is temporary or seasonal in nature, regardless of occupation.
The Department believes this proposed rescission of Sec. 655.215(b)(2)
is not only consistent with the D.C. Circuit's decision in Hispanic
Affairs Project and the guidance issued by USCIS but also better
complies with the requirements of the INA implemented in the
Departments' regulations that define when employment is of a
``temporary or seasonal nature.'' 8 U.S.C. 1101(a)(15)(H)(ii)(A)
(defining an H-2A nonimmigrant as an alien coming to perform services
of a temporary or seasonal nature); 20 CFR 655.103(d); 75 FR 6884, 6890
(adopting DHS's definition of ``temporary or seasonal nature'' set
forth in 8 CFR 214.2(h)(5)(iv)(A)).
3. Estimating the Number of Small Entities Affected by the Rulemaking
The Department collected industry data from the Bureau of Labor
Statistics' (BLS) Quarterly Census for Employment and Wage (QCEW) for
FY 2020. This process allowed the Department to identify the number of
entities impacted by this proposed rule for two North American Industry
Classification System (NAICS) Codes that frequently request H-2A
certification for herding and livestock production job opportunities:
NAICS 112410: Sheep Farming, and NAICS 112111: Beef Cattle Ranching,
and Farming. The Department was able to identify 9,329 establishments
that are classified as part of the beef cattle ranching, and farming
industry, and 233 Establishments that are classified as part of the
sheep farming industry. Next, the Department used the SBA size
standards to classify the vast majority of these employers
(approximately 99 percent) as small.

[[Page 24376]]

4. Compliance Requirements of the NPRM, Including Reporting and
Recordkeeping
The Department has estimated the cost of the time to read and
review the proposed rule. In addition, the Department assumes some
employers will experience increased costs associated with changes in
business operations, transportation, staffing turnover, and training
requirements under this proposed rule. The Department seeks comment on
how employers might adjust their business models to accommodate the
reduction in the permitted length of employment, and what effect this
might have on costs of operations.
5. Calculating the Impact of the NPRM on Small Entities
The Department estimates that small businesses engaged in herding
and livestock production would incur a one-time cost of $24.27 to
familiarize themselves with the changes proposed by this rule. Other
costs that employers could incur are attributed to the potential need
to adjust their staffing and business operations as well as employing
more U.S. workers to offset the loss of H-2A workers. However, we do
not expect that these costs will be significant, and we seek public
comments on this matter. The Department reviewed the impacts of this
proposed rule for two North American Industry Classification System
(NAICS) Codes that frequently request H-2A certification for herding
and livestock production job opportunities: NAICS 112410: Sheep
Farming, and NAICS 112111: Beef Cattle Ranching, and Farming.
The Small Business Administration estimates that revenue for a
small business with NAICS Code 112410 is $1.0 million and for NAICS
Code 112111 is $1.0 million. Although the Department does not
anticipate the proposed rule will have a significant adverse effect as
employers must already adjust to DHS's guidelines, the Department
acknowledges that some employers of sheep and goat herders will need to
replenish their labor supply by hiring additional U.S. workers to
account for the reduced period of need, or extending the work schedule
for U.S. workers that they employ.
6. Relevant Federal Rules Duplicating, Overlapping, or Conflicting With
the NPRM
The Department is not aware of any relevant Federal rules that
conflict with this NPRM.
7. Alternative to the NPRM
The RFA directs agencies to assess the impacts that various
regulatory alternatives would have on small entities and to consider
ways to minimize those impacts. As part of the settlement agreement,
ECF No. 136, Hispanic Affairs Project, et al. v. Perez et al., the
Department agreed to engage in rulemaking to propose to rescind Sec.
655.215(b)(2). The Department invites public comment on whether viable
alternatives exist that would reduce the burden on small entities while
remaining consistent with statutory requirements and the objectives of
the NPRM.

C. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq.,
and its attendant regulations, 5 CFR part 1320, require the Department
to consider the agency's need for its information collections and their
practical utility, the impact of paperwork and other information
collection burdens imposed on the public, and how to minimize those
burdens. This NPRM does not require a collection of information subject
to approval by OMB under the PRA, or affect any existing collections of
information.

D. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on state, local, and tribal governments. Title II of the UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in $100 million or more in expenditures (adjusted
annually for inflation) in any 1 year by state, local, and tribal
governments, in the aggregate, or by the private sector. A Federal
mandate is defined in 2 U.S.C. 658, in part, as any provision in a
regulation that imposes an enforceable duty upon state, local, or
tribal governments, or the private sector. Following consideration of
these factors, the Department has concluded that, if finalized as
proposed, this proposed rule would contain no unfunded Federal
mandates, including no ``Federal intergovernmental mandate'' or
``Federal private sector mandate.''
This NPRM, if finalized as proposed, would not exceed the $100
million in expenditures in any 1 year when adjusted for inflation, and
this rulemaking does not contain such a mandate. The requirements of
Title II of the UMRA, therefore, do not apply, and the Department is
not required to prepare a statement under the UMRA.

E. Executive Order 13132, Federalism

The Department has concluded that this NPRM, if finalized as
proposed, does not have federalism implications, because it would not
have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.
Accordingly, E.O. 13132 requires no further agency action or analysis.

F. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments

After consideration, the Department has determined that this NPRM,
if finalized as proposed, would not result in ``tribal implications,''
because it would not have substantial direct effects on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and tribal governments. Accordingly,
E.O. 13175 would require no further agency action or analysis.

List of Subjects in 20 CFR Part 655

Administrative practice and procedure, Employment, Employment and
training, Enforcement, Foreign workers, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Longshore and harbor
work, Migrant workers, Nonimmigrant workers, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.

For the reasons set forth above, the Department proposes to amend
part 655 of title 20 of the Code of Federal Regulations as follows:

PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES

0
1. The authority citation for part 655 continues to read as follows:

Authority: Section 655.0 issued under 8 U.S.C.
1101(a)(15)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2102
(8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978,
5027 (8 U.S.C. 1184 note); sec. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L.

[[Page 24377]]

106-95, 113 Stat. 1312, 1316 (8 U.S.C. 1182 note); 29 U.S.C. 49k;
Pub. L. 107-296, 116 Stat. 2135, as amended; Pub. L. 109-423, 120
Stat. 2900; 8 CFR 214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec.
6, Pub. L. 115-218, 132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).

Sec. 655.215 [Amended]

0
2. Amend Sec. 655.215 by removing paragraph (b)(2) and redesignating
paragraph (b)(3) as paragraph (b)(2).

Suzan G. LeVine,
Principal Deputy Assistant Secretary for Employment and Training,
Labor.
[FR Doc. 2021-09639 Filed 5-5-21; 8:45 am]
BILLING CODE 4510-FP-P

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